My resolution – to start the year as a champion and finish it as a champion … #makeitcount gonike.me/makeitcount

The second tweet was by Jack Wilshere:

Jack Wilshere stated in 2012, I will come back for my club – and be ready for my country.#makeitcount.gonike.me/Makeitcount

UK regulators have led the way in requiring disclose of sponsored tweets such as these through the use of a #spon or #ad tag on tweets. This even led to the interesting Snickergate incident where the question came up on whether a series of connected tweets required the disclosure on all tweets or just the last one. That incident was the focus of the very first post on this blog, so it’s memorable to me. Plus it’s about chocolate and social media, two awesome topics that taste great together.

Since these two tweets did not have the required disclosure but strongly appeared to be sponsored, the athletes and Nike were the focus of a complaint before the ASA. You can read the ASA’s official adjudication here but the bottom line is that the tweets should have disclosed the sponsorship.

Since this was an official action, Nike offered some arguments on why the tweets were not in violation. I’ll be generous and say that Nike knew they were in the wrong but were still obligated to provide some kind of defense. Because the less than generous interpretation would be that Nike just blew it.

First, Nike argued that consumers wouldn’t be misled by the tweets because these athletes are well-known for their Nike sponsorship both personally and as members of their teams (Manchester United and Arsenal, in case you don’t know). The ASA dismissed this argument by simply pointing to the standard that marketing communications must be obviously identifiable as such. Relying on a Twitter user’s knowledge of the person, their team, or their commercial endorsements is not sufficient.

Nike also said the Nike URL in the tweet along with the hashtag #makeitcount from Nike’s broader campaign made the tweets identifiable as marketing communications. The ASA correctly pointed out that consumers may not have known about the campaign or see the URL and that it still fails to address the main issue.

Although the ASA is brief in its adjudication, at the heart of this conflict is Nike claiming that they weren’t hiding the connection between the athletes and their brand while the ASA tells brands you must disclose the connection. Failure to hide information is not the same thing as disclosing it. Again, let’s be generous and say that Nike just had to put their best shoe forward even though they knew it was futile. The ASA does conclude with the first advertising Twitter ban, so mark these words because maybe they’ll show up on a trivia test some night in a pub.

The ads must no longer appear. We told Nike to ensure that its advertising was obviously identifiable as such.

Near the end of the official adjudication’s assessment, the ASA politely points out that a simple addition of #ad to the tweets would have made the appropriate disclosure. They’re far too refined to say something along the lines of “IT’S THREE CHARACTERS FOR GOODNESS SAKE!” mostly because they know better than to use all caps and they might have forgotten that it would be four characters with the space, but it’s still a great (implied) point. Next time when Nike asks themselves if they should add the disclosure to the tweets they compose for their sponsored athletes, I think their answer will change from “Don’t need it” to “Just do it.”

IMPORTANT DISCLAIMER

SoMeLaw Thoughts are entirely my own opinion about social media legal issues and not the statement, opinion, or in any other way affiliated with Dell.

This means I could be completely wrong about everything I post here. Sure, I’ve practiced for over ten years in technology law and have supported Dell’s social media team for a fair amount of time, but if you get five lawyers in a room and ask a question you’re likely to get seven different opinions. Oh, and it’s a really boring room. And someone will probably start quoting Latin. So I could be totally wrong here.

This is also not specific legal advice for you. I don't know you. Even if I know you I didn't write this for you, I wrote it for the blog and you're reading it. You want legal advice? Hire an attorney! A good one.